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Anyone tried this approach against Midland Funding?


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Background:

     (a) Midland inserted their tradeline using their own account number into my credit bureau records.

     (B) Account type:  "Open Account"

     © Date Opened:  "Jan., 2012"

     (d) Account Status: "date closed"

     (e) Pymt Status:      " at least 120 days or more than 4 months past due "

     (f) Comments:         "Collection Account"

 

Note: my credit report appears to show payments to being made to Midland from Jan, 2012 to current.

          (Of course, I never paid a penny to them, relax folks)

 

....its too bad I sent off my RFPD's, 'ROGS, and RFA's this morning, how come "good ideas" pop up much later when Im relaxed?  :)P ... but anyway, my first impression regarding the above, was to write to the midland affiant (after all, shes claiming to be familiar with "my case history".)

 

What I want to do:

Since this midland affiant claims to be shepherding my case, that would include receipt of payments and posting of same information as a data furnisher to the credit bureau, wouldn't it?

 

I don't suppose it would do any good requesting documents for payments made to midland as reported to the CB's within the discovery process, nor would writing, so my only option would be to address this "violation" and "data furnishing manipulation" to the Federal courts?

 

Anyone see anything wrong with writing to the affiant and demanding copies of payment checks used to report same to the CB's?... or would that be the wrong thing to do? (ie., letter "appears" threatening when demands made)

 

IM open to listening pros and cons that's shared in regard to this tactic.

 

Again thanks so much!  Roadie

 

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Anyone see anything wrong with writing to the affiant and demanding copies of payment checks used to report same to the CB's?... or would that be the wrong thing to do? (ie., letter "appears" threatening when demands made)

 

IM open to listening pros and cons that's shared in regard to this tactic.

 

Again thanks so much!  Roadie

It's just not procedurally correct to do it this way.   However, attacking the affiant is a great strategy and one you should do for sure, but you have to go through Midland's attorney with your attack on the affiant.  

 

You have a right to everything they claim in their lawsuit.  If you made a payment they have to prove it.  You are entitled to all their records (generally speaking) which they used to assist in filing of the lawsuit and what they will use at trial.  If they don't provide them then you can move to have them excluded.

 

You're on the right path but it's not as simple as just writing a letter and making some demands.   You're considering a good strategy, just don't ruin it by not doing it procedurally correct. 

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It's just not procedurally correct to do it this way.   However, attacking the affiant is a great strategy and one you should do for sure, but you have to go through Midland's attorney with your attack on the affiant.  

 

You have a right to everything they claim in their lawsuit.  If you made a payment they have to prove it.  You are entitled to all their records (generally speaking) which they used to assist in filing of the lawsuit and what they will use at trial.  If they don't provide them then you can move to have them excluded.

 

You're on the right path but it's not as simple as just writing a letter and making some demands.   You're considering a good strategy, just don't ruin it by not doing it procedurally correct. 

Gotcha, Coltfan....

 

"Procedurally correct" would be:

(a) Play the DV game again with disputing its "payment records" and wait for Midland to report it being verified as accurate.

(2) Write Midland a FDCPA letter to get the issue on track and request copies of their monthly payment records?

(3) File in Federal Court FDCPA claim(s)??? (Cheese, kinda wish those $1000 violations can be documented on that month-to-month basis instead of being "per act")

 

Is this the route to consider ???

 

You mentioned going thru midland's attorney... that's "Love, Beal and Nixon" of Oklahoma City, Okla.... a real "paper-mill" for Midland.... I suspect theyd object, and bury this deep, ..... is there another alternative possibility to take this to the next supervisory level?..,.. Im just inquiring!

 

Thanks,

 

Roadie

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Disputing an entry on your CR is not a DV.  It's simply a dispute.  You would dispute the payment history with the credit reporting agencies.  If Midland verifies the entry, it's possible you might a have counterclaim.  But you have to give Midland a chance to correct the entry.

 

That being said, is the OC reporting?  If so, is the OC reporting a date of last payment or date of first delinquency?

 

Right now, you're being sued.  You really need to focus on that.

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Disputing an entry on your CR is not a DV.  It's simply a dispute.  You would dispute the payment history with the credit reporting agencies.  If Midland verifies the entry, it's possible you might a have counterclaim.  But you have to give Midland a chance to correct the entry.

 

That being said, is the OC reporting?  If so, is the OC reporting a date of last payment or date of first delinquency?

 

Right now, you're being sued.  You really need to focus on that.

Hi BV!.... No, the OC isn't reporting.... in the OC's comment section they put in "Profit and loss write-off"

 

Payment status is notated as "Charge off as bad debt", so this means Midland purchased the debt.

 

Your right, Im being sued, but IM not sitting on my duff awaiting the Plaintiff's Discovery set, IM actively trying to absorb all I can on understanding motions allowable under the Oklahoma Civil code... you can imagine im sitting here "shell shocked" at absorbing all this legal concepts, its like reading Shakespearean at first while speaking from a consumer's civil tongue ... something like that :)p

 

cheers!   Roadie

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With your own affidavit you need to refute everything in the affidavit, or depending on how it is worded you can move to strike the affidavit as hearsay.

 

What are their complaints in the suit,,,,breech, common counts, account stated ?

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The one piece you left out....does the OC's balance = $0. If not, they still own it.

Hmmm... took another look... you are right, its not $0.

 

But its still an S.O.L. issue, to be argued in court, DOLD 9\2009, making 10\2012 a full 3 year period (for revolving charge cards, not written contracts as midland wants to technically frame them) (charge off was 6 months later, May, 2010)

 

Midland filed this suit in my local court, 2\2013.

 

roadie

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With your own affidavit you need to refute everything in the affidavit, or depending on how it is worded you can move to strike the affidavit as hearsay.

 

What are their complaints in the suit,,,,breech, common counts, account stated ?

Hi Willing...  its "common counts"

 

roadie

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(2) Write Midland a FDCPA letter to get the issue on track and request copies of their monthly payment records?

 

Send them as discovery requests, production of documents. Maybe a couple of ROGs asking them about these payments you never made. Then if you find something fishy, you can pursue it. You are in litigation, you don't write letters to these people. You use discovery. The only thing you send Midland concerning the FDCPA is a law suit once you make sure they have violated.

 

 

(3) File in Federal Court FDCPA claim(s)??? (Cheese, kinda wish those $1000 violations can be documented on that month-to-month basis instead of being "per act")

 

Not yet. You have to be sure you have something, or you could get stuck wiuth their legal fees. It is "up to $1,000" and that's all you'll get. You don't get 1,000 per violation.

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Hmmm... took another look... you are right, its not $0.

 

But its still an S.O.L. issue, to be argued in court, DOLD 9\2009, making 10\2012 a full 3 year period (for revolving charge cards, not written contracts as midland wants to technically frame them) (charge off was 6 months later, May, 2010)

 

Midland filed this suit in my local court, 2\2013.

 

roadie

 

Since the OC is not reporting, you can't go by your credit report to determine if the OC sold the account.  Midland would not show a -0- balance.  Only an OC who sold an account could show a -0- balance.

 

If you can show that your last payment was more than 3 years before the lawsuit was filed, you have a counterclaim for violation of 1692e(2).  I haven't found anything in the 10th Circuit Court of Appeals, but some other courts, including the 8th Circuit Court of Appeals, have ruled that filing suit on a time-barred debt is a violation of 1692e(2).

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(2) Write Midland a FDCPA letter to get the issue on track and request copies of their monthly payment records?

 

Send them as discovery requests, production of documents. Maybe a couple of ROGs asking them about these payments you never made. Then if you find something fishy, you can pursue it. You are in litigation, you don't write letters to these people. You use discovery. The only thing you send Midland concerning the FDCPA is a law suit once you make sure they have violated.

 

 

(3) File in Federal Court FDCPA claim(s)??? (Cheese, kinda wish those $1000 violations can be documented on that month-to-month basis instead of being "per act")

 

Not yet. You have to be sure you have something, or you could get stuck wiuth their legal fees. It is "up to $1,000" and that's all you'll get. You don't get 1,000 per violation.

Dang it, Bruno!   :) 

 

I just completed sending the plaintiffs my discovery set(s) yesterday.

 

Ya know, after days of book-swimming\head-swimming readings, I relaxed for one afternoon, and this line of query came into my head. I maxed out on "Answers" and "Rogs", but if I had retained my discovery set for one more day, could have placed this onto my RFPD.

 

Right now am awaiting midland's lawyers to send me their set of discovery, and according to the court scheduling order, the judge wants this area completed by April 15th..... Maybe I can include it in a second round of discovery inquiries when Im ready to send back my "answers" to them, but... somehow, I get the feeling that theyre gonna eat up the clock so I don't get in a second round (or even them receiving my first round of "answers" to them...my opinion)

 

Roadie

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Since the OC is not reporting, you can't go by your credit report to determine if the OC sold the account.  Midland would not show a -0- balance.  Only an OC who sold an account could show a -0- balance.

 

If you can show that your last payment was more than 3 years before the lawsuit was filed, you have a counterclaim for violation of 1692e(2).  I haven't found anything in the 10th Circuit Court of Appeals, but some other courts, including the 8th Circuit Court of Appeals, have ruled that filing suit on a time-barred debt is a violation of 1692e(2).

BV,  I went back into my records where I preserved all midland communications into one organized file.... Im staring at a "Notice of new ownership and Pre-trial notice" from MCM (not midland funding) and in their own words ..."Midland Funding LLC recently purchased your Dell account previously serviced by, or on behalf of, Dell and Midland Credit Management, Inc, MCM is the servicer of this obligation."......

 

Hmmm, that still doesn't explain why Dell didn't Zero out the credit bureau dollar amount... not sure what to think.

 

On another note, I checked my banks electronic billing records, and yup, 9-6-2009 was the last payment made, triggering the DOFD point.

 

Im going to place a request for the bank to photocopy it from their current archieves and have it on hand just in case its necessary to support ones point of view for the SOL arguments being made.  I mean, Midland wants it defined as a written account (5 yr sol), Im arguing for its current standing as a revolving charge account (3 yr sol)

 

Roadie

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Oh right.  This is a Dell account.  Were you able to charge other items to the account?  A revolving account usually has to do with repeated transactions.  If this doesn't apply to your case, you might have a difficult time claiming the account was a revolving charge account for the purposes of the 3 year SOL.

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Oh right.  This is a Dell account.  Were you able to charge other items to the account?  A revolving account usually has to do with repeated transactions.  If this doesn't apply to your case, you might have a difficult time claiming the account was a revolving charge account for the purposes of the 3 year SOL.

Hi BV... two things I would think are helpful (we will see after I finish answering back the plaintiffs discovery set, assuming they will send me one)....

 

(a) I have the original dell account credit agreement.  Under the paragraph titled " Use of your Account" =..." Your use of the open ended account offered pursuant to this agreement shall constitute the acceptance of the terms of this agreement. blah blah blah more stuff....

 

(B) I reviewed my latest (3-10-2013) credit report file, and under the Transunion column, Dell is reporting: ..."account type: Revolving Account"

 

This fits both, Oklahoma Statutes O.S. §, 12-3-95 for the 3-year sol argument on the basis of "contracts not in writing" and O.S. §, 14A-2-108 on the basis of revolving service account being defined similarly.

 

Midland wants this treated as a "written contract" which in Oklahoma, has a 5 year SOL.

 

I did have the clerk notify the judge that this lawsuit is past the Statute of Limitations... guess he wants to hear the convincing details first, I suppose ???

so those two items are going to have to form the foundation of my SOL argument.

 

Gee, Im assuming that because Ive no real experience with court proceedings, and since Im a Deaf person, going inside a court room to observe how the local judge conducts his business isn't going to help me if I cant retain a sign language interpreter long enough, much less one who would share the same legal environment and interests.

 

On the flip side, I suppose if I show the other side IM holding the original Dell credit agreement pamphlet, that it proves the account is mine...I'll keep reading more of the Oklahoma rules of evidence, and maybe an alternative way to address this would surface... We'll cross that bridge after Midland sends me their discovery set before the 15th of April (3 weeks away... Im really imagining the worst case scenario that theyre not responding til the last minute and they'll get a MSJ based on my failure to answer their discovery...

 

would it be a good idea to get a motion to compel on, say, April 10th so that I have time to respond and send back? Ive seen some commentary that this isn't a good idea (makes sense to me, I don't want them producing papers either)... but I don't trust those slick lawyers to make it look like it was my fault for failure to answer on a timely basis, ya know?

 

Roadie

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Your use of the open ended account offered pursuant to this agreement shall constitute the acceptance of the terms of this agreement.

 

See if OK law defines an open ended account.  If it does, find out where it applies in the statutes of limitations.  An open ended account is not necessarily a revolving account.

 

 

I reviewed my latest (3-10-2013) credit report file, and under the Transunion column, Dell is reporting: ..."account type: Revolving Account"

 

This would only help you if Dell is the one who referred to the account as "revolving" AND if you were able to get your credit report admitted into evidence. 

 

Read the OK Rules of Evidence regarding hearsay.  Rule 803(6) is regarding business records which is usually what is dealt with in these cases.  I don't think a credit report would be considered a business record.  But, in any case, it would have to be shown that the credit report is a true and accurate document.  I'm thinking you'd also have to show that Dell or Midland labled the account as "revolving".  Credit reporting agencies are not always accurate.

 

You have to study the definitions in the OK statutes.  I'll ask again.  Was this an account for which you were allowed to make other charges? 

 

Also, do the OK statutes have a specific definition for "open account" vs. a "revolving account"?

 

 

 

I did have the clerk notify the judge that this lawsuit is past the Statute of Limitations... guess he wants to hear the convincing details first, I suppose ???

so those two items are going to have to form the foundation of my SOL argument.

 

 

It's not the clerk's job to inform the judge of your defense.  You had to raise that defense in your answer to the complaint.

 

 

 

would it be a good idea to get a motion to compel on, say, April 10th

 

 

Motion to compel what?  I think you're getting ahead of yourself.  A motion to compel is a request to the court to compel the other party to provide information that you've requested but which they have refused to provide or are delaying in providing.

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See if OK law defines an open ended account.  If it does, find out where it applies in the statutes of limitations.  An open ended account is not necessarily a revolving account.

 

 

 

This would only help you if Dell is the one who referred to the account as "revolving" AND if you were able to get your credit report admitted into evidence. 

 

Read the OK Rules of Evidence regarding hearsay.  Rule 803(6) is regarding business records which is usually what is dealt with in these cases.  I don't think a credit report would be considered a business record.  But, in any case, it would have to be shown that the credit report is a true and accurate document.  I'm thinking you'd also have to show that Dell or Midland labled the account as "revolving".  Credit reporting agencies are not always accurate.

 

You have to study the definitions in the OK statutes.  I'll ask again.  Was this an account for which you were allowed to make other charges? 

 

Also, do the OK statutes have a specific definition for "open account" vs. a "revolving account"?

 

 

 

It's not the clerk's job to inform the judge of your defense.  You had to raise that defense in your answer to the complaint.

 

 

Motion to compel what?  I think you're getting ahead of yourself.  A motion to compel is a request to the court to compel the other party to provide information that you've requested but which they have refused to provide or are delaying in providing.

Thank you, BV, for your advocacy and making sure I stay focused on the more  relevant things to do first.

 

I'll keep reviewing the Ok. Rules of Evidence to ensure a general understanding, but yes, Im almost positive that credit reports, if obtained from the  credit bureau itself, is admissible evidence (computer printouts of the same CB records isn't going to stand up unless I can get a notary to do that for me in real-time and then notarize the instance...aint gonna happen)

 

Regarding Ok. Statutes, to answer the question you asked:

 

(a) Oklahoma Statutes O.S. §, 12-3-95 for the 3-year sol argument on the basis of "contracts not in writing" Link:http://www.oscn.net/applications/oscn/Index.asp?ftdb=STOKST12&level=1 and

 

[ b ] O.S. §, 14A-2-108 of the Oklahoma Consumer Credit code, defined "revolving service account " as an "open ended credit plan.

Link: http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=65746

 

[c] and from the original dell account credit agreement.  Under the paragraph titled " Use of your Account" =..." Your use of the open ended account offered pursuant to this agreement shall constitute the acceptance of the terms of this agreement. blah blah blah more stuff....

 

But like you pointed out, I'll cross that bridge whether or not I'll need to deny existing dell documents in my home when Plaintiffs lawyers respond to my discovery set, which is why Im anxiously sitting here with an April 15th target completion date issued from the Local Judge... something inside me seriously doubts they'll answer until at the 11th hour and then claim I didn't respond to their discovery set setting the stage for an MSJ. (my perception, its true I lack experience regarding what to expect from Midlands Legal Reps.)

 

Followup on the Ok. rules of evidence is now on my agenda, im not sitting on my duff awaiting response from plaintiffs lawyers.

 

Roadie

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Update:  3-28-2013...Love, Beal and Nixon responded with a discovery set of their own, propounded to me today...

 

Their cover letter invites me to call them to discuss an agreement to resolve this matter rather than the expenditure and considerable time faced responding to discovery set(s) [im tempted to write instead, spotlighting the DOFD and thus reaffirming my personal belief that the 3 year SOL is up]

 

Please help me draft answers to the following:

 

RFA:

1. Admit that defendant is properly identified in the style of this case. If denied, then an appropriate response to Interrogatory No. 4 will be required.

 

2. Admit that you owe the obligation which is alledged in plaintiffs petition. If denied, then an appropriate response to Interrogatory No.4 will be required.

 

3. Admit plaintiff fully performed its responsibilities as to the obligation referenced in plaintiffs petition.

 

4. Admit that you are in default on the obligation, that same is due, past due, owing and remains unpaid and that you owe plaintiff the amounts alleged in its petition. If denied, then an appropriate response to Interrogatory No. 4 will be required.

 

 

'ROGS:

'ROG:-1. State your full and complete name, your full and complete residence address, occupation and job title, and each and every residence address maintained by the defendant since the time of the contract sued upon in this case, indicating the specific date the defendant resided at each address.

 

'ROG:2. Did you obtain credit on the account referenced in plaintiffs petition?

 

'ROG:3. Is the present balance on the account, which is the subject of this action, the sum of $10? If not, state the following:

     (a) The date of each payment you contend was made

     (B) The amount of each payment you contend was made

     © The address you mailed each payment to

     (d) Defendants calculations as to how any other amount was arrived at if it is other than the stated above as to the balance

 

'ROG:4. If denial of any of the above RFA, state specifically and in detail, and be reasonable in doing so, the actual truth of the matter.

 

             [note: isn't here where I should point out to them that Oklahoma's SOL ends this matter, that is the truth of the matter...or not???? ]

 

'ROG:5. In regard to all communications defendant had regarding the acct referenced in plaintiffs petition, state the following:

     (a) the date of all letters, phone calls, memos, notes, notices, etc that the defendant received

     (B) The nature and subject matter of any and all such communications

     © Defendants response or reply to the communication, if any.

 

 

'ROG:6. State each and every defense not specifically pled thus far which the defendant intends to raise at the trial of this case and list all proof, evidence and what defendants contentions are in regard to each such defense

 

 

'ROG:7. State name, address and phone number of each person who has any knowledge of the facts pertaining to the subject matter of this litigation and

              with respect to each person, state:

     (a) subject matter of which such person has knowledge

     (B) substance of the facts and opinions which of such opinion is expected to testify

     © Summary of grounds for such opinion.

 

 

Doc's to Produce:

     (a) All canceled checks, money orders, cashiers checks, receipts or other records of payment to support your answers to 'Rogs.

 

     (B) All written and tangible evidence of any communication between plaintiff or its transferor to support your answers to 'rogs.

 

     © Produce the contract which the defendant contends was execute, if the defendant contends a different contract was executed, than is the subject of 

          the action upon which plaintiff has brought this suit.

 

     (d) Produce any and all documentary or tangible evidence which defendant either expects to use or may use as evidence at trial of this case.

 

     (e) Produce all documents defendant has to support additional defenses mentioned in your answers to 'rogs.

 

--- End ----

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Sorry, I don't have the documents you need to prove your case. If I find them, which I doubt because paper iis a fire hazard, I'll let you know. Don't hold your breath.

 

If open ended credit becomes an issue, remind them that they specify federal law applies in their credit card agreement. TILA / Regulation Z defines open ended accounts very well, that which does not have a set number of payments, like  a car loan.

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Sorry, I don't have the documents you need to prove your case. If I find them, which I doubt because paper iis a fire hazard, I'll let you know. Don't hold your breath.

 

If open ended credit becomes an issue, remind them that they specify federal law applies in their credit card agreement. TILA / Regulation Z defines open ended accounts very well, that which does not have a set number of payments, like  a car loan.

Bruno,

 

Im pointing to the Oklahoma Uniform Consumer Credit Code responsible for regulating non-commercial credit, small loans, installment sales and usury. Oklahoma was one of the first states in the nation to adopt a unified code in this field.

 

Title 14A of this Code also exempts Oklahoma from federal regulation, although Oklahoma's rules must be substantially similar to Federal Truth in Lending requirements.

 

So in other words, Oklahoma opted out of the TILA with Title 14A replaced in its stead.

 

roadie

 

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There are several states that opted out of TILA, Connecticut is one, but what was required is that they have a "mirror statute" which is virtually a copy of TILA. Both would contain the same definition. Also, you agreed in the cardholder agreement to be bound by federal law, which encompasses more than TILA. No court will set that aside. It really isn't a big deal unless you are up against Citibank. They finance some of Dell's accounts.

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There are several states that opted out of TILA, Connecticut is one, but what was required is that they have a "mirror statute" which is virtually a copy of TILA. Both would contain the same definition. Also, you agreed in the cardholder agreement to be bound by federal law, which encompasses more than TILA. No court will set that aside. It really isn't a big deal unless you are up against Citibank. They finance some of Dell's accounts.

But wouldn't admitting to owning up to a copy of the Dell cardholder agreement be the equivalent to admitting ownership of the contested account ? (at least that's the way their RFPD is constructed to declare.)

 

Anyway, Id rather point fingers to the SOL since DOFD is 9-6-09 , Id think its prudent to finger the 3-year SOL at 10-6-12. ...then whatever needs to get admitted, aint gonna make a difference, but not before that.

 

Like I said, Midland wants it defined a "written contract" for purposes of the 5-year SOL.

 

roadie

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